Commonwealth v. Louisville & Nashville R. R. , 105 Ky. 206 ( 1899 )

JUDGE BURNAM

delivered the opinion op the court.

The common school superintendent of Hardin county, by an order properly entered, condemned the school house in district No. 11 in that county, and directed the trustees of that district to provide a new school building. Pursuant to this order, the trustees, under the provisions of section 4440, Ky. Stat., levied a poll tax of $1 on each white male citizen over 21 years of age residing in the district, for each' of four consemtive years, beginning October 1. 1894, and an ad valorem tax of 25 cents on each $100 worth of taxable property in the district for the same period of time; the poll and property tax to be paid annually to the district treasurer, as provided by section 4443, Ky. Stat., to be used in paying for a new school house and its equipment, which they at once put under contract. The cost price of this building and equipment greatly exceeded the income and revenue provided for the school district for that year, and required for its payment the entire income and revenue collectible during the four succeeding years. The tax for 1894 was paid, but appellee, a taxpayer in the district, having refused to pay the tax for the year 1895, this action was instituted. Appellee demurred to the petition on the ground that the trustees were not authorized to incur the indebtedness for which the tax was levied, because it was in excess of the revenue provided for the district for that year. Its demurrer was sustained, and the petition dismissed, and from that judgment this appeal is prosecuted.

The proper determination of the question presented depends upon the construction given to section 157 of the Constitution, which provides: “The tax rate, of cities, towns, counties, taxing districts and other municipalities, for other than school purposes, shall not, at any time, exceed the following rates upon the value of the taxable property therein, viz., [limiting the burden to be imposed according to the grade of the city]. No county, city, town, faxing district, or other municipality, shall be authorized or permitted to become indebted, in any manner or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void. Nor shall such •.cpntract be enforceable by the person with whom made; nor shall such municipality ever be authorized to assume ■the same.”

Appellant contends: First, that, by the insertion of the words “for other than school purposes*’ in the first part of this section, it was intended to exempt all taxes levied for the benefit of common schools from the limitations and restrictions imposed therein upon every form of municipal indebtedness, and to leave to the discretion of the Legislature the power to provide for the support of common schools pursuant to the authority granted by section 183 of the Constitution, which provides, “The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State;” second, that the limitation contained in the latter part of section 157, prohibiting counties, cities, towns and taxing districts from incurring indebtedness, in any manner or for any purpose, to an amount exceeding in any year'the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election held for that purpose, has no application to indebtedness incurred for the erection and equipment of common school buildings; third", that “taxing districts and other municipalities” (section 357) do not include common school districts.

It seems to us, after a careful consideration of all the provisions .of the Constitution bearing upon this question, that the words “for other than school purposes” refer solely to the rate at which taxes may be levied for common school purposes. The Constitution leaves to the Legislature the power to fix the rate at which taxes may be levied for common school purposes by cities, towns, counties, taxing districts, and other municipalities, but withholds from it the power to authorize indebtedness, incurred “in any manner or for any purpose, to an amount not exceeding, in any year, the income and revenue provided for that year, without the assent of two-thirds of the voters thereof,” and expressly provides that any indebtedness contracted in excels thereof shall be void, and that such contracts shall not be enforceable by the person with whom made, nor ever thereafter assumed by such municipality. This limitation applies to every form of municipal indebtedness, including that created for the benefit of common schools. By section 4463 of the Kentucky Statutes, the Legislature has fixed the limit of such tax rate for common schools at not exceeding 25 cents in any one year on every $100 worth of taxable property in the district, and $1 on each white male citizen 21 years of age and over. In the case of The City Council of Richmond v. Powell, 16 Ky., L. R., 174, [27 S. W., 1], the same contention was made as in this case as to the meaning of the words “for other than school purposes;” and, in the opinion rendered, this court said: “If this construction is given the Constitution, then we find unlimited power in the Legislature on this subject; and the city council, when for school purposes, may be vested with the power to impose any burden, by way of taxation or indebtedness, that, in its discretion, may be deemed necessai’y for maintaining schools, and erecting buildings for that purpose. While it is made the duty of the board of education and the council to provide suitable school buildings, they must' regard the constitutional limit placed upon their action in creating a municipal indebtedness for that purpose; and the section of the Constitution quoted in express terms prohibits the creation of a, municipal indebtedness, ‘in any manner or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without first obtaining the assent of two-thirds of the voters of the municipality/ The qualification ‘other than'for school purposes’ was inserted to leave that question to. legislative control; but when the city council proposes, any manner or for any purpose,’ to create an indebtedness exceeding the income or indebtedness for the year, the wish of the voters must be consulted, and their assent obtained, before the obligation is created. . . The very purpose of the Constitution would be disregarded, with such a construction, and heavy burdens placed upon the property within the municipalities, that caused much complaint prior to the adoption of the present Constitution; and to remove the mischief the section in question was adopted.” As was further said in that case, “It is an indebtedness assumed, although payable in installments, that exceeds the income, and is prohibited in express terms by the Constitution.” And after careful consideration of the able briefs of counsel for appellant, and an examination of all the authorities cited, this court adheres to the conclusions reached in that case. It follows that, as the indebtedness incurred by appellant exceeded the income and revenue provided, for the district for the year in which it was created, it is in violation of the Constitution and void, and the trustees' of the district were not authorized to levy a tax to' pay it. Wherefore the judgment is affirmed.

[Judge Hobson not sitting. The whole court except Judge Hobson considered this case.]